Supreme Court

V* y.f:)' > o ^ c f c SC CW ns OI3 V.-. •,' 1 File No: 6101-00492

> 1 2 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES 3 4 B E T W E E N : 5 JEAN MARIE SHEWFELT, 6 Petitioner; 7

8 -and-9 JOHN GORDON SHEWFELT, 10 Respondent. 11

12 > 13 14 Tried before THE HONOURABLE MR. JUSTICE TALLIS at Fort Smith in the Northwest Territories, June 19th and 15 20th, 1978. 16

17 18 19 20 21 APPEARANCES: 22 B. WILLIS Counsel for the Petitioner. 23 3. GREEN Counsel for the Respondent, 24 I 25 20

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> 1 HIS LORDHIP'S ORAL REASONS FOR JUDGMENT 2 Mr. Willis and Miss Green, I have decided that 3 it is probably in the best interests of all concerned that 4 I deliver judgment orally today. In many instances both of 5 you are familiar v/ith the fact that I do reserve judgment 6 in contested cases, but having regard to the arguments that 7 both of you have made and having heard the evidence that 8 was adduced before me, I think I am in as good a position 9 today to deliver judgment as if I delayed it further and 10 gave written reasons. I can tell you that I did take 11 extensive notes and I have reviev/ed those notes of evidence 12 quite carefully during the course of the proceedings. I have > 13 had an opportunity to weigh and consider the matter to the 14 best of my ability. 15 Insofar as the parties to this action are con-16 cerned, I can tell you that it is always a difficult thing 17 for a trial judge to deal with matters as important as custody 18 of children. In spite of the fact that this has been a 19 contested case,I would hope that both of you as responsible 20 people will not look upon this as a contest where one is the '21 victor and one is the vanquished. Unfortunately, litig-22 ation even in family law is often concluded with one side 23 24 relishing the result to the detriment of the other side. i 25 In this particular case both the petitioner and 2G the respondent, will, in my view, be involved in the v/e If are 27 and happiness of the -tv/o children of the marriage for a number ^

tm i. ' ^ t A V r- >>, I 1 of years to come. I do not look upon sixteen or eighteen 2 years as any arbitrary cut-off t.ime for parental particip-3 ation in a moral sense. Legally there may come an end to 4 the responsibilities of parents at varying ages having regard 5 to the course or route that a child takes. I think in this 6 particular case the- father aiid mother are going to have -to 7 work together for many years, and I have no doubt that both 8 of you are sincere in your respective desires to do what is 9 right by the children. This, of course, is what makes the 10 determination of the case very difficult for a trial judge, 11 and in saying that I am not in any v/ay trying to escape my 12 I responsibility. I do, however, want to impress upon you 13 that the court appreciates the efforts that you have made to 14 as nearly as possible come to agreement on some of the issues, 15 and I think that both of your counsel should be commended for 16 assisting you in that connection. It is unfortunate that 17 matters of this kind must be litigated but I make no criticism 18 of either of you for putting your respective views before 19 the court. On the contrary, the court is charged v/ith that 20 responsibility where you have not been able to reach agree-21 ment. By the same token, I do not want to restrict your 22 manoeuvrability by providing rigid orders v/here I cannot 23 take into account your own special circum.stances. 24 Both counsel have indicated to me that at this i 25 point I need make no specific reference either to maintenanct^ 26 or the right of access. If these two problem.s cannot be 27

C :' i ^:-iz^ J: v<J'^ i I \ n - •! / 1 amicably settled after I have delivered my judgment on the 2 divorce and custody, then, of course, it follows that the 3 matters may be settled by me, and, in fact, will be settled 4 by me upon the application of counsel. 5 In this particular case I turn my attention, as I 6 must, to the question of the petition for divorce under the 7 provisions of the Divorce Act. In the Petition for Divorce 8 brought under Section 3(d), the petitioner Jean Marie Shev/-9 felt sues her husband John Gordon Shewfelt for divorce. In 10 this particular case there is also a counterpetition for 11 divorce by John Gordon Shewfelt against his wife claiming 12 relief under Sections 3(d) and 3(a) of the Divorce Act. \ 13 I should also mention that the petitioner claim.ed relief 14 under Sub-section (a) but during the hearing of this case 15 both counsel v/ithdrew or abandoned the allegations of adultery 16 on which the petition and counterpetition were based. In 17 this particular case, the counterpetition based on Section 13 3(d) was not really pursued and under the circumstances for 19 the record I have to make a disposition of it. The counter-20 petition for divorce is accordingly dismissed without costs. 21 With respect to the petition for divorce brought 22 by the petitioner, counsel for the respondent indicated to m.e 23 during the course of argument that the prayer for relief in 24 the form of dissolution of marriage was not being contested. 25 In making this observation. Miss Green and Mr. Willis m.ade it ) 26 abundantly clear that they were not trying to usurp my 27

_.,.„-.u._, >KO<*OB,<.V><^<1 — 5 — '^Z-^''yzo:'' t 1 function and appreciated fully that the case had to be est-2 ablished by a preponderance of evidence. 3 In this particular case a great deal of evidence v/as 4 adduced by the petitioner in giving her evidence. This 5 dealt with the history of the married life betv/een the parties 6 and, in my opinion, this is one of those unfortunate sit-7 uations where the cumulative effect of a course of conduct 8 on the part of the husband was such as to lead to the petit-9 ioner leaving him. Even before that her love and affection 10 or him had disappeared. Under the circumstances I am satis-11 fied on the evidence that relief can be granted under Section 12 3(d) of the Divorce /ACt. Unfortunately, the marriage in this \ 13 case cannot be redeemed, and looking at the matter in real-14 istic terms as counsel have, I think that a decree should 15 be granted. I have reached the conclusion that the case 16 has .been m.ade out as provided by the Divorce Act. I see no 17 need having regard to the position of counsel to review the 18 evidence in this connection because 'it v/ould -be quite .... 19 unnecessary. Both parties, I am sure, have found these 20 proceedings to be stressful and I have no desire by a repet-'21 ition of the evidence to revive the memory of somLe of the 22 incidents which were discussed here yesterday and today. 23 In this particular case we have two children of the 24 marriage. The two children are Heather and John Reilly 25 Shewfelt. Heather was born en June 1st, 1963, and John 26 Reilly Shewfelt was born on June 22nd, 1366. In this part-27 icular case there is evidence that the two children are fond

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of one another but I do not think there is what is coramonly called a particularly close attachment betv/een the tv/o. I 3 do not say this in any way critical of' the children but I 4 think it is just one of the facts of life at this stage 5 because Heather undoubtedly has her friends and John also 6 has his friends and the disparity in their activities xs 7 probably much greater than their ages. In this particular 8 case I think that both parents have in all sincerity tried 9 to consider the interests of the two children in giving 10 instructions to counsel, and I have on previous cases 11 reviewed what I considered to be the leading authorities 12 in this area. Miss Green and Mr. Willis have both appeared > 13 on a number of cases, and as Miss Green pointed out, she 14 appeared as counsel on the Kupeuna vs. Kupeuna case where I 15 endeavoured to set forth principles applicable in custody 16 cases in the Northv/est Territories. I am not going to repeat 17 the authorities in the form of elaborate quotations, but I 18 do think there are one or two authorites that merit at least 19 a passing observation ^Y ^^ since both Mr. and Mrs. Shev/felt 20 are in court here today. The recent case of Talsky v. Talsky 21 has been referred to, and this is reported at 21 R.F.L. 27. 22 In this particular case the Supreme Court was dealing with a 23 case where the trial judge liad made an order with respect to 24 custody, and the Ontario Court of Appeal had varied it and 25 \ granted custody to the father. The court allov/ed the appeal 26 and in allowing the appeal and directing that the children be 27 returned to the mother, the court re-emphasized the ^

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» 1 proposition that the welfare of the children is the paramount 2 consideration that must be taken by the trial judge. It is 3 not the sole consideration but, as has so often been 4 stated in many cases, it is the paramount consideration that 5 the court must focus on. This, of course, is, in my view, 6 merely a restatement of the law that has been enunciated in 7 miany earlier cases including Francis v. Francis, 8 R.F.L. 6 209, and also the case of Farden v. Farden, 8 R.F.L. 183, 9 and the trial judgmient at 3 R.F.L. 315. Miss Green has 10 already referred to the judgment in Leboeuf v. Leboeuf, 11 (1928) 1 V7.W.R. at page 423, and, of course, the relevant 12 considerations that must be applied by the court are very ^ 13 well set out in the quotation that was read from the A]-berta 14 Court of Appeal judgment at page 423. 15 Perhaps one of the earliest statement made on this 16 matter insofar as this court is concerned appears in the 17 case of McKee v. McKee, (1951) 1 All E.R. 942, at 948, where 18 the Privy Council stated that the welfare and happiness 19 of the infant is a paramiount consideration in questions of 20 custody, and further stated that to this paramount consider-21 ation all others m̂ ust yield. 22 In taking into account the various considerations 23 that apply I should point out that the court in appropriate 24 cases can give substantial weight to the expressed wishes 25 ) of the children. However, "the weJfare and happiness of 26 the children" as used in the McKee v. McKee case and the 27 other cases does not mean that the court is bound to give ^

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m D V.y j \ u Li ;J^,-/ I 1 effect to an oral declaration by any child. They must weigh 2 that declaration v/ith the other evidence and decide what is 3 best for the child, not what he thinks or v/hat she thinks 4 is best for him or her. In this particular case I must 5 resolve the issue by centering my thoughts around these 6 principles. I have had the opportunity here to listen to 7 viva voce evidence as well as certain reports that v/ere filed 8 in evidence by agreement between -the parties. I have en-9 deavoured to weigh the attitude of each of the parents 10 towards their children, and in this particular case I think 11 it is common ground that both parents have deep love and i 12 affection for their children. I have taken into account all 13 of the factors that have been mentioned, and I have given 14 this case my very anxious consideration. I should also add 15 that I had the opportunity of hearing the evidence of the 16 boy John Reilly Shewfelt in the absence of his parents, Both 17 of them of their own volition withdrew from the court room 18 so that he could give his evidence in front of me without 19 having to face either parent. While there is some indic-20 ation that both parents had discussed the matter with hini, 21 and this is perhaps unfortunate, I can well understand the 22 pressures that caused each of them to do this. After 23 examining the boy, as I am required to do, to determine 24 whether or not his evidence might be given under oath, I 25 ) came to the conclusion that it could not be given under 26 oath, but I also concluded that he was of sufficient miOturitv 27

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I 1 and intelligence to give unsworn evidence. In this part-2 icular case there is no doubt that he is attached to Fort 3 Smith and likes it here but after considering the matter, 4 I am of the opinion that at this particular time in his life 5 he is a somewhat quiet, unassuming lad who is not older than 6 his years, if I may use that term. On the contrary, he came 7 across to me as someone who perhaps is a little younger than e his years, and at this particular time I have, after 9 carefully weighing the matter, concluded that it would be 10 better at this stage of his career for him to be living witli 11 his mother and also his sister. I think that at this part-12 icular time.he needs the stability of home life in that I 13 environment, and that time will tell whether or not this 14 is the best place for him. I am., however, satisfied, thaL Lht 15 father will be able to make a very miajor contrib-ation to the 16 welfare and upbringing of this boy, and I would be very dis-17 appointed if there is any change in the attitude of,the 18 petitioner as far as her stated wishes that the father is to 19 have very liberal and generous access. The father has men-20 tioned in the witness box, and I think quite properly, that 21 the boy needs both his mother and his father and, in my 22 opinion, he will on many occasions lean not only on his 23 mother but also will need the guiding hand of his father. 24 I think that it is important in this particular case that 25 arrangements be made so that he can spend a substantial am.ount \ 26 of time with his father. Withcut going into a detailed and 27

•10-ujy 1 protracted discussion of the evidence at this particular 2 point, I do say that if the parties cannot v/ork out these 3 terms then, of course, as I said earlier, you may come back 4 to me and I will do so. I indicated to you earlier that 5 to my way of thinking in this particular case arrangements 6 should be made for the boy to spend a substantial period of 7 time with his father during the summ.er holidays, and it has e occurred to me that the parties if they want to save money, 9 and it always costs more to run two households than one, 10 should perhaps enter into an arrangement whereby this year 11 at least the time is spent v/ith the father during July so 12 there will be only one fare cut rather than a return fare. • 13 I would also have in mind that the boy would spend part of 14 th.e Christm.as holiday season with his father; part of v/hat I 15 will call the Easter or spring holiday session v/ith his father, 16 and I would like for the parties to make arrangements v/ith 17 respect to some of the long week-ends. It seems to me that 10 a boy who is doing reasonably well in school should be able 19 to take an extra day or two from school to make a long week-20 end of three days into a five-day week-end, or something 21 like that. Those are only just general guidelines I am 22 raising with counsel at this point, and I am raising them. 23 in the presence of your clients so you can see that what I 24 have in mind as access is to mean liberal access in spite of 25 distance, and that if you cannot resolve matters you v/ill

^ 26 be able to anticipate an order of some substance emanating 27

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1 from this court. It v/ill also be open, if you cannot reach 2 agreement, to speak to arrangements with respect to v/eek-3 ends. I have already given my views of trying to arrange 4 longer week-ends because of the cost of travel, and it 5 seems to me this is a very material consideration in tliis 6 particular case. At this particular point the order I 7 make is as follows: 8 (a) There v/ill be a decree'" nisi for dissolution of 9 the marriage between the petitioner and the resp-10 ondent, such to be made absolute at the expir-11 ation of three m.onths unless sufficient cause be 12 shown why it should not be made absolute, > 13 (b) It is further ordered and adjudged that until 14 further order of this court the custody of the 15 persons of the infants Heather Shewfelt and Jofin 16 Reilly Shewfelt and each of them be and the same 17 is hereby coiomitted to the petitioner. 18 (c) It is further ordered and adjudged that with 19 respect to the issue of maintenance or the right 20 of access, these matters can be settled by further 21 application to me if agreement cannot be reached. 22 Counsel have indicated that they anticipate being able to 23 agree, but quite properly have as.ked the court to leave it 24 • open. 25 With respect to the question of maintenance for the /it! wife, the only request at the outset was to reserve the '/O

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J .--,5. fe 1 positi was it not? What I was thinking is that I woi.ild 2 put it a dollar a year if that is satisfactory at this 3 time, I ause if she gets a job -4 MR. WILLIS: Yes, it is. 5 THE COURT: And 6 (d) It is further ordered and adjudged that the respond-7 ent do pay to the petitioner the sum. of one dollar 8 per year by way of maintenance; that the first of 9 such payments be made on the 1st day of January,A.D. 10 1979. 11 What do -you have to say about the issue of costs, 12 I or is that something you want to reserve? 13 MR. WILLIS: Perhaps that could also be discussed 14 between -15 THE COURT: Do you agree with that? 16 MISS GREEN: Yes. 17 THE COURT: With respect to the issue of costs counsel 18 have also suggested to me that this should be reserved pending 19 the possibility of an amicable settlement in this area. The 20 matter of costs is hereby reserved with the understanding that 21 this issue, like the issue of access, can be brought back 22 23 before m.e on application. ̂ -24 Are there any further issues? 25 MR. WILLIS: On the question of the decree nisi, is it \ to wait for the final resolving of these issues, or an 26 initial decree nisi. - perhaps there should be a final decree 27 ^

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» 1 nisi, 2 THE COURT: If your clients are anxious to have a 3 decree nisi issued pending your discussions, I do not want to 4 hold them up. They may have reasons that are well known to 5 you that they would like time to start running on the decree 6 nisi right now. Before you issue it, submit it to Miss . 7 Green for her approval in form, and incorporate into it the 8 decree nisi, the custody, the reservation of the right to 9 apply with respect to access, and costs, and maintenance ,-10 and put the one dollar a year in it, and in that way your 11 three months' period will start to run, so three or four 12 months from now if one of them are in a position v/here they > 13 wish to consider remarriage,- they are in the position that 14 they have the appropriate piece of paper for a marriage license 15 MISS GREEN: With regard to amiending the papers, 16 the petition and the style of cause -17 THE COURT: I think that was amended. Mr. Kinunerly 18

raised that when we were here before, but you can make a note 19 of it. Miss MacCaffrcy, Would you make a note that it was 20 amended at trial, and yo'ur decree nisi then can have the =21 correct spelling when you have follov/ed through with the 22 correct spelling on the documents. 23 MISS GP^EN: Thank you, my lord. 24 THE COURT: I will close court now, .but before I do I will CO